Freeman v DPP
| Jurisdiction | Ireland |
| Judge | Mr. Justice Carney |
| Judgment Date | 28 November 1996 |
| Neutral Citation | [1996] IEHC 61 |
| Court | High Court |
| Docket Number | Record No. 1995/15 SS,[1995 No. 15 SS] |
| Date | 28 November 1996 |
[1996] IEHC 61
THE HIGH COURT
BETWEEN
AND
Citations:
LARCENY ACT 1916 S41
LARCENY ACT 1916 S33
CONSTITUTION ART 40.5
DPP V MCCREESH 1992 2 IR 239
ROAD TRAFFIC ACT 1978 S13(3)
BRENNAN V DPP 1996 1 ILRM 267
MORRIS V BEARDMORE 1981 AC 446
DPP V DUNNE 1994 2 IR 537
RYAN V O'CALLAGHAN UNREP BARR 22.7.87 1987/8/2214
CONSTITUTION ART 40.4.1
AG, PEOPLE V O'BRIEN 1965 IR 142
DPP V DELANEY 1996 1 ILRM 536
DPP V KENNY 1990 2 IR 110
DPP, PEOPLE V LAWLESS 1985 3 FREWEN 30
LARCENY ACT 1916 S41(1)
Synopsis:
CRIMINAL
Arrest in dwelling house under s.41(1) Larceny Act, 1916 Article 40(5) of Constitution - inviolability of dwelling house - whether arrest permitted - whether evidence obtained as a result of illegal entry and arrest admissible - whether detention under s.4 Criminal Justice Act, 1984 following illegal arrest valid - whether conviction under s.16 Criminal Justice Act, 1984 following invalid detention valid - Held: Arrest under s.41(1) not permitted - evidence admissible due to extraordinary excusing circumstances - conviction quashed due to invalidity of detention - (High Court: Carney J. - 18/11/1996)- [1996] 3 IR 565
|Freeman v. DPP|
Judgment of Mr. Justice Carney delivered the 28 day of November 1996 .
This is a case stated by District Court Judge Thomas FitzPatrick. The point of law concerned involves the admissibility of evidence which the appellant herein claims was obtained in breach of his right not to have his dwelling house violated save in accordance with law. The case stated also relates to the legality of the appellant's subsequent detention and, in particular, the operation of Section 16, Criminal Justice Act, 1984.
On the 11th May, 1993 at 6:30 am, Garda Brian Brunton (with Garda Michael Jordan) received a call from Cabra Garda Station to go to Dunard Avenue where, he was informed, the appellant (who was known to the two gardai) and two other men had been seen unloading goods from a white van into the appellant's house. Upon arrival, Garda Brunton and Garda Jordan saw a white transit van parked outside the appellant's residence. They also three men at the porch of No. 133 (the front door of which was open). As the gardai approached the house they could see that they had been seen by the three men who turned around and ran into the house alarming the door behind them. The two gardai gave chase immediately, running up the driveway to the door of the house where, as accepted by each guard in cross-examination, the door had been slammed against them. They then banged on the door and shouted to those inside, identifying themselves as gardai. The key was in the lock and the gardai opened the door and went inside. In the sitting room Garda Brunton saw a quantity of cigarettes and a number of bottles of spirits on a table, as well as two ornamental muskets lying on a box containing a large quantity of cigarettes. The gardai pursued the men out of the house and the appellant was arrested outside the house, that is in a public place, pursuant to Section 41, Larceny Act, 1916 for the offence of handling stolen goods, contrary to Section 33 of the Act (as amended). The van was then towed away to Cabra Garda station. The appellant was also transported to Cabra Garda station and was detained there pursuant to Section 4, Criminal Justice Act, 1984for the purpose of investigating the offence of handling stolen goods. It was during the course of this detention that the offence under Section 16, Criminal Justice Act, 1984is alleged to have occurred. The circumstances of this incident will be considered separately in the latter part of this judgment.
A search warrant was obtained, subsequent to the arrest, in respect of the appellant's dwelling: the only items recovered from this search were a number of pairs of shoes which forensic analysis later indicated had been in contact with a surface in the shop from whence the goods found in the white transit van had been stolen. A search of the van had revealed five crates of beer, a small quantity of cigarettes and of cigars and two ornamental horses' heads, together with certain other items of no relevance to the prosecution.
There was a bench warrant in existence with respect to the appellant at this time but Garda Brunton accepted in evidence that the arrest of the appellant was not made on the foot of the warrant nor did he seek to execute the warrant at any point on the 11th May, 1993.
The appellant challenges the legality of his initial arrest, arguing that the entry of the gardai into his home was unauthorised by law and in breach of his constitutional rights under Article 40.5. Accordingly, it is submitted, his arrest, although in a public place, was unlawful as his presence outside was induced by the gardai illegally entering his dwelling. The appellant further argues that all evidence obtained as a result of this entry was inadmissible at trial as being obtained in conscious and deliberate violation of his constitutional rights, as was his subsequent detention under Section 4, Criminal Justice Act, 1984. The district court rejected these submissions on behalf of the appellant, ruling as follows:
i "(i) The entry by the gardai into the premises at 133 Dunard Avenue was a lawful entry, notwithstanding the absence of a warrant. In my opinion an abundance of authority permits entry in circumstances such as were established in the case before me, including the main authority, The People (AG) v. O'Brien [1965] I.R. 142 and more recent authorities such as The People v. Hogan (1972) 1 Frewen 360 and The People v. O'Loughlin [1979] I.R. 85. If the gardai had not entered the premises when they did, evidence would have been concealed or destroyed. I am satisfied that if the gardai had not entered, the evidence i.e. the property being taken into the house would have been concealed or destroyed. There were therefore extraordinary excusing circumstances justifying the entry in accordance with the principles laid down in The People (AG) v. O'Briansupra.
(ii) The arrest of the appellant was carried out in a public place and, as such, it was a valid arrest.
(iii) Finally, I felt unable to hold with the submissions made by counsel for the appellant in respect of the charge concerning Section 16 of the Criminal Justice Act, 1984."
The district court judge then proceeded to convict the appellant of handling stolen property and for failure to give an account of how he came to be in possession of stolen property under Section 16, Criminal Justice Act, 1984. The appellant herein then sought to appeal by way of a case stated.
a 1. (a) Was the entry by the gardai into the appellant's dwelling at No. 133 Dunard Avenue, without a warrant authorising same, a lawful entry?
b 1. (b) If the entry was not a lawful entry, was the evidence obtained by the garda (sic) as a result of their unlawful entry into the appellant's dwelling nonetheless properly admitted by me against the appellant?
2. If the answer to question 1 (a) is in the negative, was the arrest of the appellant pursuant to Section 41 of the Larceny Act, 1916 a valid arrest?
3. If the answers to both 1 (a) and 1 (b) are in the negative:
(a) Was the search warrant issued to Garda Brunton by Doreen Clarke P.C. a valid search warrant?
and
(b) Was the detention of the appellant pursuant to Section 4 of the Criminal Justice Act, 1984a valid detention?
4. Was I correct in law in convicting the appellant of the charge of handling stolen goods?
Questions 5 and 6 relate to the conviction under Section 16, Criminal Justice Act, 1984which I will consider separately. The appellant's essential argument as to the validity of the initial arrest is that the statutory power of arrest under S. 41 (1), Larceny Act, 1916 does not expressly authorise an arrest in a private place by a garda who is a trespasser. Counsel cites the Supreme Court decision in Director of Public Prosecutions v. McCreesh [1992] 2 I.R. 239 as authority for the proposition that such express provision is required. That case concerned the provisions of the Road Traffic Acts, in connection with driving under the influence of alcohol. Hederman J. delivering the majority judgment eschewed any reliance on Article 40.5, preferring to resolve the matter on non-constitutional grounds. Hederman J. further held that if the Oireachtas had intended to make inroads on the property rights of citizens which are recognised and protected by the common law, and to enter on private property against the will of the owner and there arrest the owner, express provision should have been made for such power. However, it is to be noted that McCreesh was decided in the particular context of Section 13 (3), Road Traffic Act, 1978which creates an offence, upon arrest, of failing to comply with the requirement under that section to permit the taking of a blood specimen, or to provide a specimen of urine. This provision, as reiterated most recently by the Supreme Court in Brennan v. Director of Public Prosecutions [1996] 1 I.L.R.M. 267, is unusual in that it represents an exception to the general privilege against self-incrimination enjoyed by an accused person. This element of compulsion to provide evidence against oneself underlies the House of Lords decision in Morris v. Beardmore [1981] A.C. 446 which was cited with approval in McCreesh at p.252:
"Had Parliament intended to empower a policeman to enter, or remain on the private premises of a suspect...
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